Regina v R

The House of Lords held that the historical common‑law marital exemption to the crime of rape no longer forms part of the law of England. The court concluded that a wife does not give irrevocable consent to sexual intercourse by marrying and that such implied consent is revocable by separation or by other conduct demonstrating withdrawal of consent. The court addressed the meaning and scope of section 1(1) of the Sexual Offences (Amendment) Act 1976 and concluded that that provision does not preserve the marital exemption; the word "unlawful" in the subsection adds nothing material and does not prevent a husband from being guilty of rape where the wife does not consent.

The court relied on developments in case law (including recent Scottish authority) and on changes in the social and legal status of married women to justify declaring that the marital fiction was anachronistic and offensive and should be abandoned. The Court of Appeal's decision was affirmed and the appeal dismissed.

The appellant pleaded guilty at Leicester Crown Court to attempted rape and to assault occasioning actual bodily harm against his wife and was sentenced to terms of imprisonment. He appealed to the Court of Appeal (Criminal Division) arguing that a husband could not in law rape his wife because a wife's consent given by marriage was irrevocable. The Court of Appeal dismissed the appeal, certified the question of general public importance, and granted leave to appeal to the House of Lords.

The House of Lords considered (i) whether a husband can be guilty of raping his wife under modern law; (ii) the relevance of earlier authorities asserting a marital exemption, notably Sir Matthew Hale's statement; and (iii) whether section 1(1) of the Sexual Offences (Amendment) Act 1976 preserved any marital exemption. In addressing those issues the House reviewed a range of authorities (English and Scottish) which had in various ways limited or eroded the marital fiction, and recent Scottish authority which had expressly rejected it.

The House framed the legal issues as whether the fiction that a wife's consent on marriage is irrevocable remains good law and whether the statutory definition in section 1(1) of the 1976 Act prevents the court from repudiating that fiction. The court reasoned that social and legal developments have rendered the fiction unjustifiable, that previous case law had already eroded parts of the doctrine (for example where separation, court orders, decrees or formal undertakings revoked implied consent), and that construing "unlawful" in section 1(1) of the 1976 Act so as to preserve the exemption would produce an implausible and artificial result. The court therefore held that the marital exemption no longer exists in English law and affirmed the Court of Appeal's dismissal of the appellant's challenge.

The appellant's petition and appeal were dismissed; the House answered the certified question "Is a husband criminally liable for raping his wife?" in the affirmative. The judgment noted the rarity and difficulty of the remedy being pursued by judges but concluded that it was appropriate to remove the common‑law fiction.

This was an appeal to the House of Lords which was dismissed. The Lords held that the common‑law marital exemption to rape is no longer part of English law because implied marital consent to intercourse is revocable; section 1(1) of the Sexual Offences (Amendment) Act 1976 does not preserve that exemption. The Court of Appeal's order was affirmed.

Conviction at Leicester Crown Court 30 July 1990. Appeal to the Court of Appeal (Criminal Division) dismissed by reserved judgment on 14 March 1991 (Court of Appeal certified a point of law of general public importance and granted leave to appeal to the House of Lords). Appeal to the House of Lords dismissed (judgment 23 October 1991).